Punjab-Haryana High Court
Gurbachan Singh And Others vs State Of Punjab on 17 May, 2011
Bench: Hemant Gupta, Jitendra Chauhan
Crl. Appeal No.167-DB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: May 17, 2011
Crl. Appeal No.167-DB of 2002
Gurbachan Singh and others ...Appellants
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Nandan Jindal, Advocate,
for the appellants.
Mr. H.S.Brar, Addl. AG, Punjab,
for the respondent-State.
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
The present appeal is preferred by Gurbachan Singh son of Kehar Singh; Manjit Kaur wife of Bharpur Singh and Jagdev Singh son of Gurbachan Singh, against the judgment passed by the learned Additional Sessions Judge, Sangrur on 23.01.2002, convicting the appellants for an offence punishable under Section 302 read with Section 34 IPC and sentencing them to undergo life imprisonment.
Kuldip Kaur, aged about 19 years, wife of Jagdev Singh and sister of Manjit Kaur, who is wife of Bharpur Singh, brother of Jagdev Singh, is the deceased.
Crl. Appeal No.167-DB of 2002 2
The prosecution case was set in motion consequent to receiving of ruqa from the Medical Officer, Primary Health Centre, Sherpur by SI/SHO Harbhajan Singh, P.S.Sherpur in respect of admission of Kuldip Kaur wife of Jagdev Singh in burnt condition. On reaching Primary Health Centre, Sherpur, SI/SHO Harbhajan Singh recorded the statement of Kuldip Kaur-deceased (Ex.PC) after obtaining opinion (Ex.PB/1) from Dr. Vijay Gupta, who declared Kuldip Kaur as fit to make statement at about 11.15 am. In her statement (Ex.PC), Kuldip Kaur stated that she married Jagdev Singh son of Gurbachan Singh about 11 months back. Her sister Manjit Kaur was mediator for arranging her marriage. Her father-in-law Gurbachan Singh and her husband Jagdev Singh used to harass her for doing the work. She further stated that last night her husband Jagdev Singh tried to press her throat, but she saved herself. She stated that today i.e. 22.01.2000 in the morning at about 9.30 am/10.00 am, her sister Manjit Kaur taunted her for not doing the house-hold work. In the meantime, her father-in-law Gurbachan Singh picked kerosene can and poured kerosene oil upon her in her room. Her sister Manjit Kaur put her on fire with match-box. At that time, her husband had gone outside. She ran out in the street while ablaze. The villagers put off the fire and laid her on the cot. After some time, her father Nachhattar Singh came there along with Balbir Singh and Darshan Kumar and got her admitted in the Civil Hospital, Sherpur in burnt condition. She stated that she was set on fire at the instance of her husband Jagdev Singh in order to kill her. The said statement was attested by Joginder Singh, Panch, resident of Ram Nagar Chhanna and Ramesh Kumar son of Dev Raj, resident of Crl. Appeal No.167-DB of 2002 3 Sherpur. On the basis of such statement, FIR Ex.PC/2 was recorded at about 12.40 pm on the same day.
Thereafter, SI Harbhajan Singh, the Investigating Officer, visited the place of occurrence and took into possession plastic can, match-box, broken pieces of bangles, burnt clothes and stove. Later SI Harbhajan Singh received wireless message to the effect that Kuldip Kaur succumbed to injuries on the way to Rajindra Hospital, Patiala, where she was referred and that the dead body of Kuldip Kaur was being cremated by her father Nachhatar Singh and some other persons at village Ghanauri Kalan. On receipt of such information, SI Harbhajan Singh reached at the cremation ground of Village Ghanauri Kalan and found a pyre in flames, however, nobody was present at the cremation ground. Thereafter, the Investigating Officer arrested Nachhatar Singh, Major Singh, Gurdev Singh and Karam Singh for destroying the evidence of crime. On 23.01.2000, the bones and ashes were taken into possession from the cremation ground and sent for analysis from Chemical Examiner. In its report Ex.PBB, the Chemical Examiner has reported that burnt bones are of human origin but it is not possible to opine on the sex and age of the bones from the material available.
On completion of necessary formalities, Nachhatar Singh - father of the deceased, Major Singh, Gurdev Singh and Karam Singh were made to stand trial for an offence punishable under Section 201 IPC i.e. for disposing of the dead body of Kuldip Kaur separately, whereas accused Gurbachan Singh, Manjit Kaur and Jagdev Singh (the Crl. Appeal No.167-DB of 2002 4 present appellants) were made to stand trial for an offence punishable under Section 302 read with Section 34 IPC.
To prove its case, the prosecution has examined PW-1 Dr. Vijay Gupta, who medico-legally examined Kuldip Kaur wife of Jagdev Singh on 22.01.2000 at about 10.45 am. He proved medico-legal report Ex.PA prepared in respect of injuries suffered by Kuldip Kaur. He deposed that on police request Ex.PB, he declared Kuldip Kaur as fit to make statement vide endorsement Ex.PB/1. He deposed that the patient was conscious, speaking and replying to the questions. In his cross- examination, he stated that the patient was referred to Rajindra Hospital at about 12.30 pm and that it was a case of 100% burn injuries and the skin on the tips of the fingers was also burnt. He denied the suggestion that due to 100% burn injuries, Kuldip Kaur was unable to speak and understand. He admitted that on account of burn injuries, the blood pressure and temperature of Kuldip Kaur was not checked.
PW-2 is Ramesh Kumar, who is a Law Graduate and was present at the Civil Hospital, Sherpur along with Darshan Kumar, Balbir Singh and Joginder Singh. He deposed that the Investigating Officer in their presence recorded the statement of a lady, who received burn injuries. He deposed that she has stated that she was not happy in her in-laws house and a day before, her husband Jagdev Singh tried to kill her, but she saved herself. He further deposed that she disclosed that her father-in-law and her sister lit her on fire. Thereafter, he did not hear anything as there was noise. During the course of cross- examination by the Public Prosecutor after obtaining permission from the Court, PW-2 Ramesh Kumar stated that he had gone to the Civil Crl. Appeal No.167-DB of 2002 5 Hospital, Sherpur on 22.01.2000 and many other people were present at the hospital. He stated that Joginder Singh, Balbir Singh and Darshan Kumar were standing outside the hospital. He stated that he had not made any statement to the Police that Kuldip Kaur wife of Jagdev Singh had made any statement before SI Harbhajan Singh and that she was married to Jagdev Singh accused 11 months ago. He also denied having made statement that Kuldip Kaur had admitted that Jagdev Singh and his father Gurbachan Singh used to harass Kuldip Kaur after her marriage nor he made any such statement to the Police. Practically, he denied his entire statement made to the Police under Section 161 Cr.P.C., though he admitted that statement Ex.PC recorded by SI Harbhajan Singh bears his signatures. He stated that Joginder Singh did not put the signatures in his presence. In his cross-examination, he stated that SI brought the statement and he put his signatures, as he was nervous and perplexed. He stated that he did not hear anything what was uttered by Kuldip Kaur.
PW-9 Lal Singh, is the driver of Tata Tempo 407, who had taken the victim i.e. girl with burn injuries from Civil Hospital, Sherpur to Rajindra Hospital, Patiala. He stated that 10-12 persons accompanied the victim in his vehicle. He stated that girl succumbed to the burn injuries on the way before reaching the hospital, therefore, she was brought back to Ghanauri Kalan. He denied having made statement to the Police. He was declared hostile and cross-examined by the Public Prosecutor after obtaining permission from the Court. He was confronted with the previous statement, which he denied having Crl. Appeal No.167-DB of 2002 6 made and also stated that he does not know if Nachhattar Singh is the father of the victim Kuldip Kaur.
PW-10 is ASI Gurmail Singh, who was posted at P.S.Sherpur on 22.01.2000. He deposed that victim- Kuldip Kaur made statement Ex.PC to SI Harbhajan Singh in his presence and the same was written by him at his dictation. He deposed that the statement was attested by Joginder Singh, Panch resident of Ram Nagar Channa and Ramesh Kumar. He further deposed that Joginder Singh, Panch accompanied them, when they went to the spot and lifted burnt clothes, bangles, plastic can of kerosene oil, match-box and stove. He deposed that when they were searching for the accused and were present at Sherpur, a wireless message was received that the parents of the girl were performing the cremation of the girl at Ghanauri Kalan. They reached the cremation ground and found that pyre of the girl was in flames. He deposed that when they reached cremation ground, no person was present near the pyre. He deposed that on 23.01.2000, they collected some ashes at the pyre including bones, which were converted into separate sealed parcels and sent for the chemical examination. He deposed that on 23.01.2000 accused Gurbachan Singh, Manjit Kaur and Jagdev Singh were arrested and on 25.01.2001 accused Nachattar Singh, Major Singh, Gurdev Singh and Dharam Singh were arrested.
PW-14 SI Harbhajan Singh is the Investigating Officer, who deposed in respect of steps taken by him in completion of investigation including recovery of stove, plastic can, match-box and bangles. He deposed that at 6.35 pm, he received information from SI Karmit Singh, P.S.Sherpur that Kuldip Kaur was referred to Rajindra Crl. Appeal No.167-DB of 2002 7 Hospital and in the way she succumbed to the burn injuries and she was being taken to Village Ghanauri kalan for cremation. Thereafter, he reached Village Ghanauri Kalan and found that the dead body was lying in the flames in the cremation ground and no person was present near the dead body. In his cross-examination, he admitted that some portion of skin of right thumb was burnt, when thumb impression was taken. He stated that he reached Ghanauri Kalan at 7.00 pm on 22.01.2000. He stated that he received the message through wireless that dead body of Kuldip Kaur is being cremated in the cremation ground and that the distance between Sherpur and Ghanauri Kalan is about 9 kms. He denied the suggestion that the thumb impression of Kuldip Kaur was obtained later on after her death.
Apart from examining the above witnesses, the prosecution has also examined PW-3 Joginder Singh, PW-4 Darshan Kumar, PW-5 Dhanna Singh, PW-6 Malkiat Singh, PW-7 Balbir Singh and PW-8 Bhagwan Singh to complete the chain of circumstances. However, all such witnesses have turned hostile.
Since there was no incriminating circumstance against Nachhatar Singh, Major Singh, Gurdev Singh and Karam Singh, they were acquitted of the charges framed against them vide judgment dated 20.12.2001 in a separate trial. However, the incriminating circumstances appearing in the prosecution evidence were put to Gurbachan Singh, Manjit Kaur and Jagdev Singh (the present appellants) in their statements recorded under Section 313 Cr.P.C. In their statements, all the accused have taken a similar stand that they Crl. Appeal No.167-DB of 2002 8 were living separately from each other. However, they did not lead any evidence in their defence.
Considering the entire evidence on record, the learned trial Court convicted and sentenced the appellants, as mentioned above.
Learned counsel for the appellants has vehemently argued that the dying declaration (Ex.PC) is not proved for various reasons including the fact that the same is not recorded by a Magistrate, who could be made available in a short time. The Doctor has certified the patient to be fit to make statement at about 11.15 am, but the statement was recorded at about 11.40 am. Learned counsel for the appellants has further argued that the Doctor has not remained present during the time the statement of Kuldip Kaur was recorded, nor the Doctor has certified that the patient was physically and mentally fit at the conclusion of the statement. As per PW-1 Dr. Vijay Gupta, the hands of Kuldip Kaur were burnt, then how she could thumb mark her statement Ex.PC, as stated by the Investigating Officer PW-14 SI Harbhajan Singh. Learned counsel for the appellants further argued that the prosecution has miserably failed to prove charges against the appellants, as none of the witnesses examined by the prosecution have supported the prosecution story.
We do not find any merit in the said argument. PW-1 Dr. Vijay Gupta has deposed that the patient was conscious and responding the questions though he has not recorded the temperature or blood pressure of the patient. The patient was removed to Civil Hospital, Sherpur soon after the occurrence, when PW-1 Dr. Vijay Gupta Crl. Appeal No.167-DB of 2002 9 examined her on 22.01.2000 at about 10.45 am and within one hour the statement of Kuldip Kaur has been recorded. The patient with 100% burn injuries would be in acute pain. This is what has been noticed by PW-1 Dr. Vijay Gupta and also the fact that she was responding to the questions. The statement (Ex.PC) made by Kuldip Kaur does not seem to be manipulated one for the reason that she has levelled allegations against her real sister, who happens to be wife of her husband's brother. In her statement (Ex.PC), Kuldip Kaur has categorically stated that her husband has tried to press her throat previous night and was not present at the time of occurrence. She has explained the manner of occurrence in graphic details. The suggestion put to the Investigating Officer PW- 14 SI Harbhajan Singh is that the thumb impression of Kuldip Kaur has been obtained after her death. From the evidence on record, it transpires that the patient has been referred to Rajindra Hospital at about 12.30 pm and none of the police official has accompanied the relations to Patiala, which gave them leverage to take the dead body of Kuldip Kaur to their Village Ghanauri Kalan for cremation. Therefore, there is no occasion for the Investigating Officer PW-14 SI Harbhajan Singh to obtain thumb impression of Kuldip Kaur subsequent to her death, as she was alive when she left the Civil Hospital, Sherpur at about 12.30 pm. In terms of High Court Rules and Orders Volume-3 Chapter 13-A Rule 6, the Investigating Officer has obtained attestation from the persons present at the Civil Hospital, Sherpur, at the time of recording of dying declaration. PW-2 Ramesh Kumar has admitted his signatures on the statement Ex.PC. He has also admitted that the Crl. Appeal No.167-DB of 2002 10 statement regarding attempt made by her husband Jagdev Singh to kill her on the previous night and that her father-in-law and sister lit her on fire was made by Kuldip Kaur in his presence. Though in his cross- examination, the statement made by the witness under Section 161 Cr.P.C. has been denied, but the fact that the witness has admitted the attestation on statement Ex.PC, is sufficient to prove such statement. Ramesh Kumar is in fact witness of two facts. One is as that as attesting witness of the dying declaration recorded by SI Harbhajan Singh and another to prove the dying declaration made before him by Kuldip Kaur. As an attesting witness to the dying declaration, the witness is not a witness to the contents of the statement made by Kuldip Kaur, but only of fact that a statement was made by a person in his presence. From the testimony of PW-2 Ramesh Kumar, it can be said that he has not proved an independent dying declaration allegedly made by Kuldip Kaur. But he admitted that he signed the statement Ex.PC, therefore, it is proved beyond any reasonable doubt that the dying declaration was made by Kuldip Kaur to PW-14 SI Harbhajan Singh.
The prosecution case is proved from the testimony of PW- 9 Labh Singh, when he deposed that he carried the victim of burn injuries from Civil Hospital, Sherpur to Rajindra Hospital, Patiala along with 10-12 persons. The girl succumbed to burn injuries on the way before reaching Rajindra Hospital, Patiala and she was brought back to Village Ghanauri Kalan. It is not suggested that the girl with burn injuries was not Kuldip Kaur. The fact that Kuldip Kaur received 100% burn injuries stands proved from the testimony of PW-1 Dr. Vijay Gupta, who has proved medico-legal report Ex.PA. A perusal of Crl. Appeal No.167-DB of 2002 11 medico-legal report Ex.PA, shows that it was Nachhatar Singh-father, Karnail Singh-uncle and Joginder Singh, who have brought the injured to Civil Hospital, Sherpur. It records that the patient was conscious and replying to the questions. The Doctor has opined that Kuldip Kaur was fit to make statement at about 11.15 am. Some time must have been taken for completing the statement. It is 12.30 pm, the Investigating Officer PW-14 SI Harbhajan Singh has put his note for recording of FIR and FIR was recorded at 12.40 pm on the same day. There is no time gap in the opinion of the Doctor in respect of fitness of Kuldip Kaur and the statement recorded by SI Harbhajan Singh, which may create doubt on the prosecution story. In view of the said fact, we are of the opinion that the statement Ex.PC was correctly recorded by SI Harbhajan Singh.
We do not find any merit in the argument that the statement should have been recorded by a Magistrate. Recording of statement (dying declaration) by a Magistrate carries high probability of truthfulness. But that does not mean that the dying declaration recorded by a police official cannot be relied upon. Since Kuldip kaur has suffered 100% burn injuries, her condition was precarious. The way in which she has been attended to and advised to be taken to Rajindra Hospital, Patiala clearly shows that her condition may not permitted the recording of statement by a Magistrate. Therefore, mere fact that the statement has not been recorded by a Magistrate is not a ground on which the prosecution case can be said to be suffering from improbabilities. The evidence on record conclusively proves the commission of crime by the appellants.
Crl. Appeal No.167-DB of 2002 12
The argument that with 100% burn injuries, thumb impressions could not have been obtained, is again not made out. The thumb impression on the statement Ex.PC gave sufficient identification though it cannot be said that the thumb impressions is absolutely clear and complete. Such statement is admittedly attested by PW-2 Ramesh Kumar, a law graduate and an independent person of Village Sherpur. Even Joginder Singh has admitted having signed statement Ex.PC. Though the witnesses have denied to made statement in respect of role of each of the accused, which would be in the nature of independent dying declaration, but the fact that they have not disputed their signatures on the statement Ex.PC, such statement is proved to have been made by Kuldip Kaur. Even in the absence of thumb impressions, the dying declaration is proved to be made by Kuldip Kaur.
Learned counsel for the appellants has vehemently argued that there is no evidence that the body, which was being burnt and ashes and bones of which are proved to be of that of human, were that of Kuldip Kaur. Therefore, in the absence of proof of such fact by the prosecution, the appellants cannot be convicted for an offence punishable under Section 302 with the aid of Section 34 IPC. It is contended that Nachhatar Singh, father of Kuldip Kaur and others, who were separately tried for an offence punishable under Section 201 IPC stands acquitted vide judgment dated 20.12.2001. Therefore, the appellants in the absence of proof of fact of dead body being burnt at Ghanauri Kalan on 22.01.2000 as that of Kuldip Kaur, the conviction of the appellants is not sustainable.
Crl. Appeal No.167-DB of 2002 13
We do not find any merit in the said argument as well.
Ghanauri Kalan is the parental village of deceased Kuldip Kaur. PW-9 Labh Singh has deposed that after the death of the victim of burn injuries, he has taken the tempo to Ghanauri Kalan. The occurrence has taken place in the matrimonial home of Jagdev Singh. There is no explanation as to how Kuldip Kaur received burn injuries. The occurrence has taken place in the morning hours. Though the accused have stated that they are living separately, but in the absence of any positive evidence of their living separately, it is not possible to accept such stand when in the dying declaration Ex.PC, Kuldip Kaur has assigned role to each of the appellants. Since the occurrence has taken place as per dying declaration in the matrimonial home of the deceased, it was for the appellants to disclose such facts within their knowledge in terms of Section 106 of the Evidence Act. The statement of PW-9 Labh Singh is substantially corroborated by PW-10 ASI Gurmail Singh and PW-14 SI Harbhajan Singh, the Investigating Officer. Though it would have been better, if the prosecution could get DNA test performed on the ashes and bones recovered, but in the absence of any other explanation in respect of pyre as that not of Kuldip Kaur from the statement of PW-9 Labh Singh, PW-10 ASI Gurmail Singh and PW-14 SI Harbhajan Singh, the prosecution has proved that the pyre in the cremation ground of village Ghanauri Kalan was that of Kuldip Kaur alone.
Learned counsel for the appellants further argued that the conviction of the appellant Jagdev Singh is with the aid of Section 34 IPC. It is contended that there is no intention in commission of crime Crl. Appeal No.167-DB of 2002 14 i.e. in causing death of Kuldip Kaur, as he was not the person present at the time of burning incident. Reliance is placed upon Badruddin Vs. State of Uttar Pradesh AIR 1998 SC 3243, Ramashish Yadav Vs. State of Bihar AIR 1999 SC 3830 and Idrish Bhai Daudbhai Vs. State of Gujarat AIR 2005 SC 1067.
In Badruddin's case (supra), there was altercation between the two groups after Friday prayer in the open yard of Mosque. Thus, it was found that it is difficult to sustain the conclusion that there was common intention between the appellants and the other persons to kill the deceased. In Ramashish Yadav's case (supra), there was altercation between two groups over ploughing of land. It was found that the accused persons have gone to the fields and ploughing, thus, they cannot constitute an unlawful assembly within the meaning of Section 141 IPC. In Idrish Bhai Daudbhai's case (supra), it has been held that the common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. Keeping in view the aforesaid principles in mind, in the present case, Jagdev Singh is said to have pressed throat of his wife Kuldip Kaur, a day earlier. Subsequently, though he was not physically present, but his bhabhi Manjit Kaur i.e. wife of his brother and sister of the deceased as well as his father Gurbachan Singh have played active role in setting Kuldip Kaur ablaze. The fact that Jagdev Singh has attempted on the life of Kuldip Kaur, a day earlier, shows that he shared the same intention, which is manifested by the conduct of other two appellants next day. Crl. Appeal No.167-DB of 2002 15 Therefore, all the three accused have common intention in commission of crime on 22.01.2000.
We do not find any merit in the argument that in the statements recorded under Section 313 Cr.P.C., the prosecution has not put any question of common intention to all the accused, therefore, the conviction of the appellants is not sustainable. Common intention is a state of mind, which is to be proved either from conduct and/or from circumstances. Such conduct has to be inferred on the basis of evidence on record. There could not be any concise question in respect of common intention of all the accused. Still further, the purpose of recording of statement under Section 313 Cr.P.C. is to provide an opportunity to the accused to explain the incriminating circumstances against the accused. The accused had the opportunity to cross-examine the prosecution witnesses as well. Therefore, if the specific question in respect of common intention is not put to the accused, it cannot be said that the prosecution has failed to prove commission of crime by the appellants.
In view of the above, we do not find any ground to interfere with the findings recorded by the learned trial Court in the present appeal. The same is dismissed.
(HEMANT GUPTA)
JUDGE
17.05.2011 (JITENDRA CHAUHAN)
Vimal JUDGE